I’m fascinated by the Constitution in general, and I think the Second Amendment is particularly interesting. I love to argue about the amendment. If I’m arguing with Goldy, the exchange sounds something like this:

Me: What is it about “the right of the people to keep and bear Arms” that you don’t understand?

Goldy: There’s a comma! There’s a fucking comma, you hillbilly! [Storms off in disgust]

The recent deliberations by the Supreme Court over the legality of Washington D.C.’s handgun ban is great stuff. Believe it or not, this will actually be the first time the Supreme Court will rule on gun control, specifically, whether a gun control measure violates the Second Amendment.

Now, I think the 2nd makes it pretty clear that the government has the ability to see that our militia is well-regulated (background checks, waiting periods, concealed and carry permits), I think the 2nd is obvious in declaring that, fundamentally, Americans get to own guns.

We are not some subsection of German Bavaria, after all, where our rights are given to us by some potentate. We’re Americans, where our rights come from our Creator. Thomas Jefferson once said:

I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.

I’m no gun nut, but I’d rather D.C. residents has too much freedom than too little.

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Comments

In the context of the 2nd Amendment and in the usage of the time, what does the word “regulated” mean?

Certainly, in today’s culture it means “to control,” but in the 18th Century, was that its meaning? Did the Framers intend that? I don’t think so.

My sense is that “regulated” meant something entirely different, more along the lines of equipped, trained, experienced, etc.

When you think of a militia, think more in terms of the Minutemen, a citizen-army who mustered from their homes with weapons they owned to protect those homes and the property upon which they stood. Sounds a lot like owning a gun to protect your home today, something that is in doubt in many cities where you have to rely on the gub’mint.

As we increasingly learn, relying upon gub’mint as the first responder is an iffy proposition; the person responsible for the immediate safety and security of your property is you – if you won’t do it, nobody will.

Interestingly, the most ardent gun rights supporters I know are women who’ve been the victims of assault or robbery. They tend to pack heavy and stand ready to use.

It’s also interesting that jurisdictions where gun control is aggressive tend to be the worst when it comes to aggressively protecting unarmed citizens from dangerous and most of the time armed criminals.

A disarmed citizenry is one easily controlled by totalitarian interests. Simply one more example of checks and balances.

@2 It’s irrelevant, crackpiper, because the meaning of the Constitution’s words change over time with changing social conditions and needs. This canon of interpretation has been enshrined in American jurisprudence for a very long time, as you well know. Or, if you DON’T know that, the bar examiners had no business passing you. But that, too, is irrelevant now as you were inufficiently devoted to the law to even try making a living at it! Legal education was wasted on you. Oh, I know the law schools try to select entering students with the aptitude required for legal studies, and I suppose they’re bound to make some mistakes, but how you slipped through the admissions system is a mystery.

I think we should allow all Americans to own smoothbore muskets, swords, knives and axes…as intended by the founding fathers.

Otherwise how do you interpret “arms?” Do I get an F/A-18 if I can afford one? An M1-A2 Abrams tank?

More to the point…is ownership of any and all small arms protected under the 2nd Amendment? Does the mention of a “well-regulated milita” have no bearing on its intent? If not, why is it mentioned in this context? There isn’t a lot of wasted language in our founding documents and I’m disinclined to ignore the inclusion of this phrase…comma or no.

@8 I’m not arguing with your logic, but I think liberals should arm anyway, because conservatives have announced their intention to kill us (just as Hitler announced his intention to kill the Jews in “Mein Kampf”). All social systems and legal codes from the dawn of time have recognized a universal right of self-defense no matter what the municipal code says.

Read the letters of Thomas Jefferson if you really want to get a good understanding of the thinking that went on during the formation of our nation, I highly recommend this exercise.

Like the clarification on the church/state issue, Thomas Jefferson went on to explain the 2nd amendments meaning quite clearly. The Founding Fathers clearly intended that all American citizens shall have the right to keep and bear arms. The intention was never to limit the issue of gun ownership for the purpose of state militias. It was also expressly said by Jefferson as means for the early pioneers and frontiersmen to protect themselves while settling the west.

Owing a gun is a civil liberty granted and protected by the Constitution. The NRA and the Republicans are correct on this issue in principle.

Fortunately the founding fathers realized that any government, given total freedom over it’s citizens would eventually trample over those citizen’s rights and liberties. Hence, the Constitution was put in place to define government’s limitations and the rights of its citizenry to demand, even if at gunpoint, that the government would only be allowed limited power and scope over the people. The second amendment follows the first amendment for a specific reason. Trample the first, we will stop you with the second. The word “People” appears over and over in the constitution and must be taken to mean the same, each time it is presented. “We The People”, etc. are the citizenry of this great country and no branch of government, neither state, county or federal has the right to breach any term of the constitution without first going through the lengthy process of amending the document by ratification. I pray the wisdom of the founding fathers still lives in our justices of today. As for those who portend that the constitution is a “living breathing document”, I beg to differ. It is not made of silly putty to be molded to fit the whims of each successive generation, it is the foundational stone upon which free men must stand and live by. Truths are truths, they never change. Attitudes may change, leaders may change, but the very truths enshrined in the words of our constitution will never change.

Piper– My good friend Roger Rabbit is one of those guys who beliees the Constitution is a “living document”. Rog…that’s mighty dangerous, especially when talking about the 2nd Amendment. Criminals will always have guns. Why take them away from law-abiding citizens?? Will, you are on top of this. Perhaps Goldy is afraid of guns. Goldy….did you grow up in Philly hunting and target practicing? How many guns have you shot? (BB GUN @ the Carnival doesn’t count!…neither does a squirt gun) Perhaps Goldy some of us experienced with firearms can take you out and show you how safe they are when you know what you are doing. I’ll bet Puddy would be willing to give you a private Firearms Safety Training Class.

Originalist interpretation of the Consititution is favored by a majority of SCOTUS.

To contend that the Constitution’s meaning changes over time as the meaning of words change over time is to allow that anything goes, which basically is Orwellian: All animals are equal but some are more equal than others.

It’s also a way to allow activist courts to amend the Constitution and bypass the people.

But as we all know, the truth of the law has never stood in your way – in general, the truth of anything never stands in your way.

Rog– Did you buy Wells Fargo yesterday like I told you too?? I bought @ $27.25 yesterday. Today, it closed at $31.54 Up $20k in a little over a day. I hope you listened. Most of the KLOWNS are to afraid to risk capital(just like they are afraid of firearms)….they want “sure things”. At least you are willing to take investment risks.

Soooooo….that means you can keep a tank. Right? Or nuclear weapons. Or machine guns. Or anthrax and mustard gas.

Riiiiiiight?????

WEll that’s juist a pretty stupid result, so that can’t be right. So, instead the 2d Amendment can be an individual right, but ….ta-da!!!! that right can still be regulated in all kinds of ways JUST LIKE EVERY OTHER RIGHT.

I have an individual right to marry. But not if under a certain age, not if incompetent, not if already married, not without consequences if divorced. I ahve a right to vote but here and not there, etc. etc. I have a right to speech but not too loudly or not to lie in commerce or not for obscenity….a phrase found nowhere in the 1st Amendment.

In the early 19th century several states with individual right to bear arms had courts that said a ban on all handguns or all revolvers is just fine and legal. So…..if you go by what the folks back then thought, many of whom were there when they wrote the 2d amendment and many similar provisions in state constitutions, you would have to agree that finding an individual right to bear arms doesn’t mean a state can’t ban revolvers, or handguns, or machine guns, or anthrax. It doesn’t mean there can’t be restrictions on this right, just like there are restrictions on all rights.

The very simplest NRA argument is that everyone can keep and bear all arms without any regulations whatsoever. That’s just nonsense, and it is totally at odds with the language and original interpretation of these types of clauses.

The theories that this is needed to prevent fascism is also nonsense and totally at odds with experience around the world. Britain isn’t going fascist.

The theory this is needed for safety is also nonsense and totally at odds with experience around the world. The safe places to go have effective gun control. The unsafe places have guns all over — like the USA. And don’t come back quibbling about statistics from DC or a single city, obviously you need a whole nation to be on board to have effective gun control.

The 2d amendment doesn’t talk about guns or handguns — it talks about “arms.” So if you see an unlimited right to bear arms, you and I can have nuclear bombs in the basement and the government can’t outlaw that and can’t make us register and can’t license that.

Just search google for whatever you want. No listings for atom bombs though, I just checked. You can get a MIG 21 pretty cheap though. Buzzing your neighbors with a MIG would be pretty fun, don’t you think?

According to my research, “well-regulated” in the 18th-century context meant “smoothly functioning,” and not “constrained by bureauratic restrictions.”

I am pro-choice when it comes to personal self-defense, just as I am pro-choice on reproductive rights. I regard gun ownership, if that is someone’s choice, as an inalienable right, just as freedom of speech, freedom from unwarranted search and seizure, and the right to a speedy trial, are.

Doesn’t “militia” imply protection of not merely one’s own personal home and property, but also the collective community? Which implies collective operation in some sense.

I’m not sure where that leads us, however. But I’ll also note that if there weren’t some sort of conditions or limitations being applied by the Founding Fathers to arms-bearing, why mention the militia at all?

As for the commas, 18th century writing in English was replete with them — far more than we use today, often placed is what appear to be unusual and rather meaningless locations in a sentence. I wouldn’t draw any conclusion whatsoever from punctuation. Just as we ignore the excessive capitalization in 18th century documents.

Of course the word gun means something very different now than back in the late 1700’s – I think all Americans should be able to own flintlock rifles that require a gunpowder and can shoot once every 15-30 seconds if properly loaded.

Everything else – banned for personal use. Nothing like a literal interpretation of the constitution. They sure didn’t say that handguns or Gattling guns or repeating guns or semi-automatic pistols were a right….

Piper: “To contend that the Constitution’s meaning changes over time as the meaning of words change over time is to allow that anything goes, which basically is Orwellian: All animals are equal but some are more equal than others.”

The Constitution is a living document or it long ago would have lost any relevance. The founders knew that no mortal being could anticipate all the changes likely to come down over the decades and centuries. So, they enshrined values and principles, values and principles which could be consulted when technological change occurred, for instance. At the core of most of the first 10 amendments is an honoring of individual liberty and privacy; the first 10 amendments, to a large extent, reflect a drawing of a boundary over which government shall not cross.

Interpreting those amendments, thus, requires identification of uncodified values and principles. Let me give you an example–do you think the 4th Amendment’s prohibition of unreasonable searches and seizures applies to governmental interception of telephone calls and online transmissions? Most Americans do. The 4th Amendment on its face, however, does not require a warrant for such interception–how could it when no one in the 1780s conceived of such means of communication? To remain a relevant document, the Constitution must be read as growing. That does not mean originalist intent is irrelevant. On the other hand, anyone who claims to have a grip on what the founders intended is either lying or deluded. Look at Bush’s signing statements attached to new legislation–what those who voted for a piece of legislation two weeks ago intended is often controversial. Yet, people still claim the capacity to interpret the intentions of men who lived over 200 years ago? Spare me. It ain’t possible. When someone like Scalia claims to be an originalist, what he is actually claiming is that he, and only he, should get to interpret the Constitution. If you would argue otherwise, why don’t you read a little decision called Bush v. Gore?

I’m not saying that the Constitution’s meaning should evolve merely with dictionary changes. But, if the Constitution is to remain our principal blueprint for government (a notion, by the way, to which the Bushites would take exception), then it had better have the capacity to provide guidance in the absence of specific admonitions.

What’s even more dangerous is thinking you can govern a 21st-century society with rules designed for 18th-century social organization and technology. If the Constitution hadn’t been considered a “living document” subject to the continuing reinterpretation necessitated by evolving society, it would have failed to meet our needs and been discarded long ago.

@14 “Originalist interpretation of the Consititution is favored by a majority of SCOTUS.”

That’s a pretty sweeping statement, crackpiper, considering that even if the majority of SCOTUS is now originalist, (a) they haven’t been there long enough to change much of our law, and (b) even die-hard originalists (most of ’em, anyway) recognize the principle of stare decisis and thus are reluctant to tamper with firmly established precedents.

It’s one thing to argue the merits of existing law and whether it should be changed. That’s the province of academics, law professors, and appellate lawyers. It’s quite another for working lawyers to ignore what the law actually is, especially when their clients are paying them good money to help them avoid conflict with the law. If you were out there dispensing legal advice to clients based on your legal philosphy instead of what’s going to happen to your clients when they get to court, you’re guilty of malpractice and arguably incompetent. The originalists lost the judicial battle 200 years ago, and while they may now be reasserting themselves, their view of constitutional law is hardly ascendant. When and if it takes hold in the judiciary, then working lawyers have a duty to their clients to take notice and account of it in their representation of clients. But to the extent you’re suggesting that’s the governing principle of American constitutional law right now, I say you’re full of shit.

PS @ 2: If you study the history of the colonial & state militias, you will see that it was more than a mere “minuteman” concept, where they came out of from the farms to fire at redcoats from behind trees. The reason why the Minutemen were organized was because the colonial militia was an official part of the colonial government, although the Royal Governors and the Colonial legislatures often squabbled over who had control over them.

The state militias existed prior to the revolution, and continued to exist through the Civil War. State law often made enlistment mandatory for all able-bodied men between of the appropriate age. They would meet regularly for drill and firearms practice, and would often be uniformed and equipped from state funds, including artillary, and were subject to military discipline. The colonial/state militias were used in several of the wars with the Native Americans, as well as with the French Canadians, the Spanish, and against pirate raids.

I think the 2nd Amendment was probably motiviated by the experience of Virginia in the spring of 1775, when the Royal Governor (Dunbar?) attempted to seize the state militia arsenal at Williamsburg. At the same time he applied for assistance from the local native americans and slaves for assistance in putting down the rebellion, offering them amnesty, freedom, and property in return. But such a tactic enraged even the conservative citizens of Virginia, and he was forced to flee Williamsburg to a British warship, from which he attempted to lead tory attacks over the next year or so (which burned down Norfolk in the process).

Remember that at the time the Constitution was drafted, a large standing army was not contemplated. It was expected that the federal government would call upon the state militias for mutual defense, to be supplemented by an additional volunteer force as needed.

Anyway, state militias often had gray uniforms, which were cheaper than other fabrics at the time. This was in part why the Confederacy eventually adopted gray as the color of their uniforms. This also led to confusion from time-to-time – at one point in the days preceeding Gettysburg, a state militia unit was charged with guarding a bridge over which the Army of the Potomic marched – the militia members were told in no uncertain terms that they had better find some blue uniforms to replace their gray ones, if they didn’t want to get accidentally shot.

So in reviewing this history, you will see that the present-day national guard has a much closer similarity to the colonial/state militias than the “minuteman” concept.

@15 (continued) Along that same line, Mrs. Rabbit heard on the news that some people were snapping up shares of Washington Mutual yesterday when they fell under $9 a share. Nine bucks is cheap if the stock goes to 20, but it’s stupid if the stock goes to 5 (or 2, or 0), and I think the latter is more likely than the former, so I say WaMu is prohibitively expensive at $9.

This, of course, reflects my broader view — which I’ve expressed in this blog the last few days — that the economic situation is much more serious than government officials and the media are telling the public. For example, Mort Zuckerman, a Wall Street billionaire and media mogul (he owns U.S. News and World Report, among others), yesterday told NBC News this is the worst financial crisis since the Great Depression. There is much, much, more to this than subprime mortgages.

As I’ve said before, the U.S. has a negative savings rate and for the last 25 years American consumers have maintained a rising lifestyle despite stagnant wages by progressively (a) spending their savings, (b) borrowing against home appreciation, and (c) piling up unsecured debt (mostly in the form of credit card balances). Now that the cheap-and-easy-credit spigot has seized up, there must be a broad and deep retrenchment in consumer spending.

For example, the last few weeks have brought forth the phenomenon of banks jacking up interest rates on credit card accounts of good customers who pay their bills on time in order to shore up their balance sheets. Capital is melting away and revenue streams are shrinking as mortgage and investment banking fees dry up, so they’re tapping the quickest and easiest source of profits they can: They’re gouging their best customers.

This is going to have profound fallout. How do you think a guy who has been paying 7.9% on his credit card is going to react to a notice from the bank that all new balances will be charged 28%, and this new rate will also apply to old balances beginning in 90 days? I’ll tell you how he’ll react. (1) First, he’ll stop putting new charges on his account, i.e., he’ll stop buying stuff. (2) Second, he’ll have to cut back even further on his consumption just to pay the higher interest charges. (3) But he won’t stop there, he’ll cut even deeper into his consumption to pay off his balance in order to get out from under the pawnshop interest rates. (4) But it doesn’t stop even there; he’ll never trust banks or credit card companies again, and will make long-term, fundamental, structural changes in his lifestyle and spending habits so that he doesn’t have to be at the mercy of credit card lenders ever again.

What all of this adds up to, when combined with the general seize-up of credit in our economy, is that consumer spending will fall off a cliff and the nation is in for a prolonged and deep recession. The shit has barely begun to hit the fan; people who think this is the worst of the financial industry shakeout or stock market decline are dead wrong.

So, go ahead, buy Wells Fargo stock. I don’t wish you ill, Cynical, really, no matter what you believe I don’t have it in for you in any personal way — what we do here on this blog is competition, not personal warfare — but I’m not going to bust my balls to protect you from your own stupidity or ignorance, either. That’s not my responsibility, and people who do that ordinarily expect to be paid for it, and as you’re not paying me I have no fiduciary responsibilities to you. Do what you want. If events prove you right and prove me right, you’ll accrue the satisfaction of crowing about it. But if you get reamed six ways to Sunday, don’t come crying to me about it; I warned you. That’s all I can do.

Remember, it took only 24 hours for Bear Stearns stock to drop from $60 a share to $2 a share. The problem with banks is they have no way of knowing what their bad-loan exposure is or what the market value of their assets is, so how the hell can you as an individual shareholder know? At this momemtn, there’s no way to rationally value bank stocks, it’s pure gambling. It’s dart-throwing. I hope this is “mad money” you won in bingo or poker that you’re playing with, and not your retirement savings.

Of course, you could follow the Swiss model, or the Israeli one: make just about everyone in the country a member of the reserves, equip them with their own automatic weapons which they are required to keep with them in their home & maintain, report for regular drills and be subject to military discipline.

The Swiss haven’t had very many problems with too many guns in the homes, but they haven’t had to fight a war in a long time, either, so it’s anybody’s guess how well they would do.

The Israelis have a lot more practice fighting wars, some with better results than others. It was argued that during the last conflict the government erred by having the “novice” regular army fight in Lebanon, instead of the more experienced reserves – a concept which kind of stands the usual relationship between regulars and reserves on it’s head. I have no idea whether having that many weapons in the homes creates more gun violence in Israel – it’s kind of hard to tell since the international news is more about missle attacks, suicide bombers, and retaliatory bombings by Israeli aircraft.

There’s a difference between reasoning by analogy and growth and calling a cow a horse.

The law of common law theft grew through judicial reasoning to encompass more than the original “trespassory taking and carrying away of the personal property of another.” For example, the notion of “breaking bulk” was developed to cover what happens to a bailee who converts property in his possession to his own use thus addressing the “trespassory taking and carrying away…” element of the crime.

That type of reasoning was used to address technological innovations both in terms of the citizen and the government, and that, at law, is neither unusual nor unexpected.

But there have been times – too many times – where a court has simply gone off on its own tangent then rationalized it by saying something akin to, “Times change.” The difficulty is that in these instances, the Constitution spells out a process of amendment and that is the proper methodology to change the law.

I don’t like it when judges tell us what the law should be then decide thusly. That’s the job of the people through their legislatures or, as is the case in Washington, directly through initiative and referendum.

Today’s argument on the 2nd Amendment is a good example. From news reports I heard that in order to fully understand the context of the language, resort was made to how the words were understood at the time, examining similar legislation in the states, and looking at the record of deliberations on the Amendment.

Words should mean what their authors intended in so far as we can objectively determine that from both what they said and how those words were used at the time.

The definition of words changes frequently changes over time. Linguistic evolution shouldn’t be legally binding – who elected Webster’s or Funk & Wagnell to tell us what the law is?

It’s the genius of both the Constitution and the Common Law to take general principles and apply them to factual situations that weren’t intended at the time. In many respects, this is unique to Anglo-American law, and it explains why our democracy works.

But when the reasoning no longer applies, when something new or unique is addressed, then there are times when judges and courts must defer to the legislature. Abortion is an example of what happens when that isn’t done. There is no sense of legitimacy in Roe v. Wade because the decision wasn’t left to the people; judges did what they wanted then made up reasons to cover their tracks – “penumbras emanating” and all that garbage.

To say that the law has changed because the definition of words in the law has changed isn’t “growth” it’s anything goes.

It’s interesting that today Justice Kennedy stated from the SCOTUS bench that the operative phrase in the 2nd Amendment is, “…the right of the people to keep and bear arms shall not be infringed.” Pretty elemental and adhering to the plain meaning of the text. Yet it seems that gun control advocates want to eviscerate that plain meaning out of the Amendment by calling horses cows and visa versa.

Your criticism of Scalia is odd. Ultimately, in our system, he is the only one – together with eight colleagues – who is entitled to tell us what the original intent of a law is because that’s the job of the Supreme Court.

If “We the People” don’t like it, we, through our representatives, can change the law, in the case of statutory interpretation, or amend the Constitution. There is precedent for this.

In short, I don’t like judges making this stuff up as they go along; I don’t trust them any more than I trust anyone. They ought to keep to their own turf.

It is already the law of the land that guns can be regulated. Looks to me like the Court will decide whether the DC handgun ban is reasonable.

Looks like most Supreme Court justices already have indicated that the DC ban is not reasonable.

But just wait. The gun nuts will go crazy when this Court gives new force to reasonable gun regulation that is routinely bashed by the people who make their livings promoting extreme views under the guise of living the 2nd Amendment.

RR @ 33: Yep, the banks can’t determine their exposure just by looking for the credit files of the sub-prime mortgages, and anticipating how many of them will default.

The problem is that defaults result in foreclosures, and foreclosures bring down the property prices of everyone around them. You could have perfect credit, but if you need to sell (job relocation, etc.), you could find that your house listing is one of six on the same block, of which four of those are now bank-owned, and the banks are conducting a fire-sale. In addition, the foreclosed properties bring their own problems – uncut lawns, boarded up windows, squatters moving in, which further brings down the value of the entire neighborhood.

So you drop your asking price by 30%, which is about all the equity you have, and find that you still can’t sell your house. Your new job starts, so you go ahead and move, renting in the new location until your house sells. But with you absent, it becomes just another empty house on the block, and values depreciate further.

Eventually you can’t continue to pay the mortgage on the old place plus rent on the new one, and you can’t leave your new job, so you decide to give the property back to the bank. It becomes yet another foreclosed and bank-owned property on the block.

Your previous next-door neighbor has great credit, too. And his mortgage was reasonable, an APR of 5%, with a balloon due in three years. Even with interest rates at 7.5%, he should have no trouble re-financing his loan, right? He starts looking well in advance, being the responsible person that he is. But now he finds he has two problems. The first is that all the banks and mortgage companies are gun-shy and cash-short. A lot of them aren’t making any loans, and the ones that are want 50% equity and excellent credit. No problem, right? He’s got good credit and his house doubled in value over the past 2-1/2 years, and he brought 20% down payment into the deal, anyway.

But this is when your neighbor gets the real shock. With several bank-owned properties on his block remaining unsold after six months, the appraisal comes back saying that not only does he not have 50% equity – he actually doesn’t have any equity at all. Even with 100% financing (which no longer is available), he couldn’t borrow enough money to replace the expiring APR mortgage with a 30-year one – under any terms. No bank is going to loan money on a property under a negative equity deal.

After trying to re-finance for months, the bank eventually calls the balloon payment due and forecloses when he can’t pay it. Another bank-owned property is added to the list of other empty properties on the block.

If the trend is allowed to continue, eventually you have another Great Depression, with lots of empty houses that nobody can afford, and banks going broke because they can’t collect on their loans.

Piper: “It’s the genius of both the Constitution and the Common Law to take general principles and apply them to factual situations that weren’t intended at the time. In many respects, this is unique to Anglo-American law, and it explains why our democracy works.”

I agree with you. I’d ask you, however, who is it that takes general principles and applies them to new factual situations? The judiciary, of course. As John Marshall made clear in Marbury v. Madison, determining what the law means is fundamentally the role of the judiciary in our tripartite form of government. So, when judges come up with new interpretations of the law, I don’t think denominating such judges as “activist” means anything. Such judges are simply performing their role. We can say that their interpretation is wrong, but declaring them to be activist gets nobody anywhere.

“But when the reasoning no longer applies, when something new or unique is addressed, then there are times when judges and courts must defer to the legislature. Abortion is an example of what happens when that isn’t done. There is no sense of legitimacy in Roe v. Wade because the decision wasn’t left to the people; judges did what they wanted then made up reasons to cover their tracks – ‘penumbras emanating’ and all that garbage.'”

Here we disagree completely. I believe the Constitution resolves questions of fundamental rights. Sometimes divining its reach requires more digging than at others, but claiming that controversies over “rights” should be resolved by “the people” is too easy, if not irresponsible. Sure, the Roe Court had to locate the right of privacy within the interstices of more plainly stated rights, but I think such right is surely there–keeping the government out of fundamental private decisions is the essence of protecting individual liberty.

I think the “originalist” or “strict construction” position is a result-driven jurisprudence which, practically speaking, is impossible to implement. Whose intent should count? That of the constitutional framers or that of the voters in the various states who approved the amendments? Any claim that such intents were monolithic at the time of the Bill of Rights’ enactment is simply folly. And, what about subsequent amendments to the Constitution, don’t they make the original intent much less valid as a source of constitutional meaning? Some amendments, the 13th and 14th for instance, so changed social and political concepts and arrangements in the nation that the framers’ intentions become of minimal importance. I agree that constitutional meaning should not change with the vagaries of vocabulary. Rather, identifying constitutional meaning is a hard task that involves identifying and applying fundamental constitutional principles. The Roe Court was correct in that regard.

PS @ 35: The original Bill of Rights begins with the following words…. “Congress shall make no law….” Early court decisions said that the Bill of Rights only restricted the power of Congress, and not the several states – citizens had to look to their state constitutions for protections from it’s own legislatures. Then came the 14th Amendment, which restricted the power of states to infringe upon the rights of any citizens of the United States. The Supreme Court began a case-by-case adoption of specific rights under the Bill of Rights and applied it to the states, as well as to the Congress. This eventually led to the line of cases (beginning with Griswold vs. Connecticut and forward through Roe vs. Wade) which recognized a right to privacy inherent in the Bill of Rights.

So, how does the 2nd Amendment fair under a 14th Amendment analysis? What if the court says that the D.C. regulation falls because it is a law adopted to Congress (due to the peculiar nature of the District of Columbia), but a similar law adopted by a state would not be covered? If you say that the 2nd Amendment restricts state action because it applies to the states under the 14th Amendment, are you not also recognizing the flexibility of the Constitution, and the concept of inherent rights?

I think one can apply a simple smell test. Given the times, what would have happened of the Congress tried to pass any law that confiscated people’s guns? “The tree of liberty must be nourished with the blood” of such legislators, to paraphrase Mr. J.

The right ot bear arms, in the context of the time the Bill of Rights was written, means what it says.

Moreover, it is essential to also remember that this was before the concept of Federalism was accepted. The Federalist papers actually act as if states have more military power than the Feds.

Of course, at that time, “armed” did not envision modern weaponry snd people used guns as tools. Killing folks with muskets was … hard work! Moreover, the idea of disarming a rural people dependent on hunting and farming for food would have made no sense.

So, one can easily and credibly expand the 2nd to read

“In a nation governed by the people, the people must not be disarmed or prohibited from joining together to resist oppression.”

The latter phrase is the obvious consequence of the first phrase of the Amendment but is also obviously omitted from Madison’s wording. It is likely that this represented a compromise. Jefferson was a supporter of the Whisky Rebellion while the protoFederalists were extremely opposed. Madison represented a rational compromise.

My guess is that there is no way that the FF would have envisaged a country where men did not have access to firearms. OTOH, given the way the Whisky rebellion was put down and worse the legislation of the Adams, years to control sedition, I also suspect the founders really did not want to facilitate an uprising. So, the compromise maybe should read (in modern terms:

“”In a nation governed by the people, to prevent the military from holding overwhelming power, the people must have sufficient ars to resist any dicatatorial effort.

This is close to the original words BUT makes little sense in the current technology. I think the correct meaning might be:

“In order to preserve a democracy made up of many states, the military power of the Federal government must be balanced by the ability of the States to raise armed militias.

PL @ 38: I agree with much of your analysis. But there was a book out there about ten years ago – I forgot the title – which discussed the role of federal judges in the civil rights cases of the 1950’s and early 1960’s. One of the precepts of the book was that the federal judges were forced to step into the controversy because the political branches of government – the executive and the legislative – were stalemated. The Senate, in particular, was unable to overcome the filibuster power of the Southern senators in order to address civil rights legislation in any meaningful way. (Previous civil rights legislation & adoption of the 13th & 14th amendments was accomplished through reconstruction-era legislatures).

I always thought that was an interesting analysis. Applying it to the current gun-control laws is also interesting, in that it reflects the stalemate created between the gun-control lobby and those seeking some form of gun control. It is the inability of these two parties to reach a reasonable compromise which lands the whole think onto the lap of the U.S. Supreme Court, asking them to deal with rather quaint constitutional language dealing with regulation of militias which no longer exist.

rhp: “One of the precepts of the book was that the federal judges were forced to step into the controversy because the political branches of government – the executive and the legislative – were stalemated.”

Federal judges having to “step into” a political controversy is surely something we don’t want to see. Federal judges surely don’t want to do that, because federal judges are, in fact, political creatures. Their lifetime appointments, however, give them some cover that legislators and executives don’t have. Ultimately, with regard to the race wars of the 50s and 60s (and, here is where that icon of conservatives, William F. Buckley, was dead wrong–he was a states rights kind of guy then when it came to segregation, even if that position was dividing the nation and immoral), some branch of government had to act in an adult-like fashion. Some federal judges did, others didn’t. The Supreme Court basically got on board and did its task of deciding what concepts inherent in the Bill of Rights, like fairness and equality, require in a pluralistic society. For that, the Court was accused of “activism.” Had the Court reached a different decision in, for instance, Brown v. Board of Education, we might well be two nations now.

Of course, given the grip on American politics that the South has had since Nixon’s “Southern Strategy,” maybe being two nations wouldn’t be so bad. I believe you’re from the South, so you might think differently. But, by God, southern politics has been dragging this nation down over the last few decades (and we won the war).

rhp I forgot to mention the Second Amendment controversy. The Amendment is, of course, a grammatical trainwreck. Anyone who claims its meaning is “clear,” is full of it. Four clauses in one sentence, disputed historical context, the evolving meaning of the word “arms”–I have no idea what it means. It is the most unclear of the various provisions of the first 10 amendments. I think you’re right that the Supreme Court needs to resolve its meaning–Congress or state legislatures cannot do so with “legitimacy” (to borrow Piper’s term). I am afraid, however, that this current Supreme Court, which is an incredibly political Court in its desire to please the white, corporate elite, took on the gun issue to try to somehow keep restless rural whites within the GOP fold. Frankly, I could give a damn how the Court holds, as long as the Court holds that the right to bear arms, like every other right, is not absolute.

If you think ‘banning’ guns makes us safer, you’ve never lived in DC. I lived in DC for two years (Logan’s Circle). I can tell you every criminal and gang member that wants a gun has one. There are hundreds of shootings a year. The gun “ban” only effects people who obey the law. If you’re willing to shoot someone (murder), another penalty for having an unregistered or illegal gun is the LEAST of your concern. “Sorry sir, you get life in prison PLUS 18 months for having an illegal gun.”

On the other hand I’m not going to commit murder or rob a bank. Whether I’m legally allowed to carry a gun or NOT does not make the public any safer.

“Whether I’m legally allowed to carry a gun or NOT does not make the public any safer.”

What will make the public safer is for more guns available to immediately take-down any would-be criminals. If the risk in committing a gun crime is almost certain death due to the good aim of a citizen, committing a crime might have a risk/reward inequality that is just too painful for criminals to bear.

@46 “What will make the public safer is for more guns available to immediately take-down any would-be criminals.”

My lawyer friends laugh at this kind of bravado. When acted upon, it keeps them in green. If you shoot someone you WILL be arrested. You WILL pay a lawyer. You may or may not do prison time, depending on how good the lawyer is, and how much he charges is directly related to how good he is. Doing the Charles Bronson thing is a fine hobby for people who have several hundred thousand dollars of extra cash at their disposal.

@49 I wonder if those same lawyer friends wouldn’t be the first in line to file suit against the police when they get mugged (or worse)?

I don’t believe that is a calculus that any American should ever have to face. Frankly, if your life is on the line, do you really want to be weighing jail time and/or monetary loss against protecting yourself, or your family? Actually, I guess the question is actually *should* you have to?

1. if you can keep and bear arms, then we are going to have to allow citizenst o keep and bear nuclear weapons, tanks, and all arms. the 2A isn’t about guns alone, it’s about “arms.”

Since this is totally ridiculous, it can’t mean that.

2. the early cases on the individual right to bear arms found in state constitutions held it is okay for the legislature to ban an entire class of arms such as revolvers or handguns

thus all the pro gun legal arguments fail and all the “original intent” arguments fail

3. I predicted someone would bring up DC law as ineffective to produce safety. “If you think ‘banning’ guns makes us safer, you’ve never lived in DC. I lived in DC for two years (Logan’s Circle). I can tell you every criminal and gang member that wants a gun has one.”

This is silly as we all know DC has porous borders and it has to be national to be effective.

And if you lived in Paris or Rome or Munich or London or Tokyo you would know:

nations with gun control have safe capital cities and you can live downtown and walk around at night without the all consuming fear you have in big US cities like DC where there are guns everywhere.

4. the theory we need handguns every where to keep us “free” from fascism or a government that will take over our rights is also totally silly and at odds with history and experience.

UK Japan all places with strong gun control are not becoming fascist nor losing their democracy. Ish’t a few hundred years of experience enough?

And if you buy this theory little hand guns aren’t going to do the job again we would need to have tanks and rocket launchers and nuclear weapons in the hands of the free citizenry.

And that would be ridiculous.

To sum up: -the original intent of the individual right to bear arms was that too bad, the state can ban an entire class of arms So even if there is an individual right to bear arms, this means a ban on an entire class of arms can be reasonable –otherwise we can’t ban entire classes of arms like tanks or nukes, too. –the two theories of the RTBA for personal safety and to preserve freedom don’t make sense in the real world as the safest nations ARE NOT the ones with guns everywhere like here, in DC in the USA generally or in Pakistan…the safest nations are places with strong effective national gun control. –threats to freedom do not grow from gun control places like Japan, Spain UK show no evidence at all of losing democratic freedoms.

On NPR this morning, I heard some snips of yesterday’s oral arguments before the Supreme Court.

Aside from the issue of “collective” vs. “individual” rights of gun ownership, they got into a discussion of whether cities and states can enact “reasonable” regulations with respect to firearms. After all, the 1st Amendment is pretty clear, but that doesn’t mean that the government can’t hold someone responsible if they shout “fire” in a crowded theatre, does it? Besides, does anybody want to the court to find all firearms regulations to be unconstitutional? If so, wouldn’t all dealer licensing regulations fall, as well as laws restricting machine guns, morters, and even tanks? Wouldn’t a mentally ill person, or a felon, still have a right to possess a gun if he wanted one?

So then they get into the issue of what is “reasonable”. Is it reasonable to restrict handguns but not rifles or shotguns? What about regulations regarding gun cabinets, trigger locks, etc? What about requiring gun safety classes before someone could buy a weapon? What about restrictions on the capacity of magazines? Wouldn’t the “reasonablness” of legislation differ between someone in a big city, as opposed to someone on a ranch in Montana?

And aren’t such questions the type of balancing act which is more the province of a legislative body, than the various judges throughout the country? Do we want the courts to be filled with appeals courts trying to reconcile a decision in Montana, overturning just about every gun law, with another one in D.C. which upholds just about every restriction?

Is this going to be another situation like the court had in the late 1960’s and 1970’s, when the court is called upon to decide if every challenged film in the country has sufficient redeeming social value to protect it from being ruled obscene, despite showing nudity?

Although oral arguments can be misleading as a predictor of the court’s ultimate decision, it seems to me that in this case, the court is going to ignore the “militia” language, and instead craft a standard based upon the “reasonableness” of the regulations, following some combined first & fourteenth amendment types of analysis.

My prediction: the court will rule that the second amendment is not absolute, but that it is subject to reasonably restrictive regulation, which in turn is determined by “community standards” – thus allowing local jurisdictions to craft their own rules. Whether or not the judges decide that the D.C. regulations are reasonable is a 50/50 proposition.

For all you “Strict Constructionists” “Original Intent” yahoo’s out there here’s your chance to prove your case.

Please explain the “strict meaning” of the 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Please define the exact limits of “unreasonable” searches and seizures. You’ll only need to use the words contained in the 4th Amendment to explain its precise meaning, right?

Well, probable cause is obvious. If you are a mudlim, talking to folks in a mudlim country, then you are certainly tied in to terrorism. And yes, the Gov’t should be watching/recording your every move.

If yer just a mudlim in this country (sorry to hear about your chosen religion) and NOT COMMUNICATING w/ the mudlims outside the USA, then there’s no need.

Probable cause is FISA and the Patriot Act. And it is certainly reasonable for us real Americans to be on guard against those from WITHOUT who wish to destroy us.

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